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High Court of Australia |
HAWKINS v. PERPETUAL TRUSTEE CO. (LIMITED) [1960] HCA 51; (1960) 103 CLR 135
Will
High Court of Australia
Fullagar(1), Kitto(2) and Menzies(3) JJ.
CATCHWORDS
Will - Construction - Furniture - Not included in description "personal effects and articles of personal use or ornament" - Residuary disposition - In proportion to legacies bequeathed by will - Specific legacies included in description - Effect of republication of will by codicils - Life interest in settled fund not included in description.
HEARING
Sydney, 1959, December 9, 10; 1960, August 9. 9:8:1960DECISION
1960, August 9.2. It is convenient to deal first with a question which arises on the second appeal, and which relates to a gift of certain chattels made by the will to the appellant, William Charles Wood, who is a nephew of the testator. The gift in question is made by cl. 5 (c) of the will, but it is necessary to look first at a gift of chattels to the testator's wife, which is made by cl. 3 (c) of the will. Clause 3 (c), so far as material, is as follows: "I give and bequeath to my wife the said Jane Ingram Wood free from any probate estate or other duty payable in respect of my estate all the household furniture and effects and articles of household or domestic use or ornament in the flat occupied by us at 'Hannington' 14 Fairfax Road, Bellevue Hill and also all glassware cutlery and china in my premises known as 'La Vista' Blaxland Road, Wentworth Falls and any motor car owned by me at my death (all such household furniture and effects and other chattels being hereinafter referred to as 'the said chattels') for her use and enjoyment during her lifetime". On the death of the wife the chattels given are to fall into residue. Clause 5 (c) occurs in a long list of legacies, all of which, except the legacy at the moment in question, are pecuniary legacies. The legacy in question is: "To my nephew William Charles Wood all my personal effects and articles of personal use or ornament belonging to me not hereinbefore bequeathed to my said wife." (at p139)
3. The testator, at the date of his will, was residing in the flat mentioned in cl. 3 (c), but some time later he moved to 19 Olola Crescent, Vaucluse, where he was residing at the date of his death. By his first codicil he gave to his wife for life "any household furniture and effects and articles of household or domestic use or ornament" in any residence that might be occupied by him at his death. He also, by his second codicil gave to his wife (a) a right to reside during her lifetime in the house at 19 Olola Crescent, Vaucluse, and (b) a right to select for her own use during her lifetime "any articles of household furniture or articles of domestic use or ornament" in a property which he owned at Wentworth Falls known as "La Vista". In fact after his death his wife appears to have "selected" all articles covered by this description except furniture. He also by the same codicil gave to his wife a cottage adjoining "La Vista" at Wentworth Falls, "and the household furniture and effects and articles of household or domestic use or convenience" therein. (at p140)
4. With regard to the gift made to Mr. W. C. Wood by cl. 5 (c) of the will, the only question argued before Else-Mitchell J. was whether that gift carried furniture belonging to the testator at his death other than furniture situated at "La Vista" and other than furniture situated at 19 Olola Crescent, Vaucluse. Else-Mitchell J. held that cl. 5 (c) did not include ordinary household furniture, but carried only articles specially and personally used by testator. I agree with his Honour's view. The will is not well drawn, but both the will and the first and second codicils appear to draw a distinction between furniture on the one hand and articles of personal use. The distinction is, as his Honour has said, conspicuous, and I have not been able to find anything to displace the conclusion which his Honour founded upon it. (at p140)
5. The remaining questions raised by the two appeals are more important and considerably more difficult. They arise out of the fact that the will disposes of the testator's residuary estate by reference to legacies previously given. (at p140)
6. Clause 5 of the will begins with the words: "I give and bequeath the following legacies". Then follow eight sub-clauses, by which nineteen legacies are given. All these, except the last, are legacies to persons who are sisters or nephews or nieces of the testator, and all except the third in the list are pecuniary legacies. The first is " (a) To my sister Mary Jane Bowers Hawkins" (who is the appellant in the first appeal) "the sum of 2,000 pounds". The second is "(b) To my sister Beatrice Eliza Foster Forster the sum of 1,000 pounds". The third is the specific legacy (given by cl. 5 (c), which has already been quoted) of "personal effects and articles of personal use or ornament" to W. C. Wood. The remaining sub-clauses, lettered (d) to (h), give pecuniary legacies of specified amounts to named nephews and nieces. Clause 6 of the will "gives and bequeaths" to the testator's nephew, W. C. Wood, all shares held by the testator at his death in a company named Engineers' Representatives Pty. Ltd. Clause 7 of the will contains the gift of residue. It is a long clause, in the course of which the testator gives a large number of further pecuniary legacies, but none of these is to a sister or a nephew or a niece. The only directly relevant part is the provision at the end of it, which directs the trustees of the will to divide the ultimate residue "between my sisters nephews and nieces to whom legacies have been hereinbefore bequeathed in proportion to the legacies bequeathed to them respectively under this my will". (at p141)
7. Else-Mitchell J. has held that neither Mrs. Hawkins (the first appellant) nor Mr. W. C. Wood (the second appellant) takes any interest in residue. The two appeals do not depend on precisely the same considerations, and it will be convenient to deal first with the case of W. C. Wood. (at p141)
8. With regard to W. C. Wood the first question is whether he is a member of the class among the members of which residue is directed to be divided by the concluding words of cl. 7 of the will. That class is described by the words "nephews and nieces to whom legacies have been hereinbefore bequeathed", and the division is to be "in proportion to the legacies bequeathed". Two gifts have been made earlier in the will to W. C. Wood. The first, which is expressly described in the donative clause as a "legacy", is the gift of chattels by cl. 5 (c), which has already been considered. The second is given by cl. 6, which reads: "I give and bequeath all shares held by me at my death in the Company known as Engineers' Representatives Pty. Limited to my nephew William Charles Wood absolutely free from any probate estate or other duty payable in respect of my estate". This second gift is not in the donative words expressly described as a "legacy", but in cl. 1 of the first codicil the testator makes gifts of shares in a company to W. C. Wood and Sylvia Wood, which are expressed to be "in addition to the legacies bequeathed by my said will". Sylvia Wood is not a beneficiary under the will. In cl. 7 of the second codicil the testator refers to this gift of shares as the "bequest" contained in the first codicil to his will. It may be mentioned at this stage also that in the third codicil he recites that he has by his will "bequeathed" to his sister Mary Jane Bowers Hawkins the sum of 2,000 pounds. Since this gift made by the will was undoubtedly a "legacy" on any view, this recital suggests that the testator regards "legacy" and "bequest" as interchangeable terms. (at p142)
9. Before proceeding further it should be mentioned that both at the date of his will and at the date of his death the testator was registered in the share register of the company mentioned in cl. 6 of the will as the holder of 2,456 shares. He had, however, on 15th June 1955 (i.e. after the making of the will and first codicil and before the making of the second codicil) transferred 1,000 of these shares to Mr. W. C. Wood in consideration of the sum of 1,000 pounds payable subject to certain conditions. The transfer was not registered before the death of the testator. It would seem that a question may arise as to whether this transaction effected an ademption of the bequest in cl. 6 of the will so far as 1,000 of the shares are concerned, and, if so, whether the position was affected by the confirmation of the will contained in the second codicil: cf. Fairweather v. Fairweather [1944] HCA 11; (1944) 69 CLR 121 . The answer to these questions might, if Mr. W. C. Wood is held to take a share of residue, affect the quantum of that share. But these questions are not material for present purposes, because on any view cl. 6 of the will is effective at least as to 1,456 shares. The value placed on the shares by the Commissioner of Stamp Duties is 2 pounds 2s. 0d. per share. (at p142)
10. Else-Mitchell J. has held that the word "legacies" in the disposition of ultimate residue means pecuniary legacies. Since, therefore, the two legacies "hereinbefore bequeathed" to him (by cl. 5 (c) and cl. 6) are specific legacies and not pecuniary legacies, he takes nothing under that disposition. His Honour based this conclusion on two main grounds. He observed in the first place (and this, of course, is true) that the operation of cl. 6 depended entirely on the number of shares which might be held by the testator at his death, and he thought it unlikely that the testator would intend that the proportions in which residue was to be divided should depend on what the testator might choose to do with his shares between date of will and date of death. He observed in the second place (and this, of course, is also true) that, if the legacies given by cl. 5 (c) and cl. 6 were legacies within the meaning of the residuary clause, whatever passed under cl. 5 (c) and cl. 6 would have to be valued for the purposes of the residuary clause. And his Honour thought it very unlikely that the testator would contemplate the making of such valuations. (at p142)
11. The reasons given by his Honour are not without force. But, after full consideration, I find myself, with respect, unable to agree with the conclusion which he reached. (at p142)
12. I begin by thinking that, where a testator makes both specific and pecuniary gifts expressly describing gifts of both classes as "legacies", and immediately afterwards refers to "the legacies hereinbefore bequeathed", a very strong reason must be found for saying that he is referring only to one of the two classes of legacies which he has given. Here the gift made by cl. 5 (c) is expressly described as a legacy, and, although the gift made by cl. 6 is not in the terms of gift in the will described as a "legacy", it is very clearly a legacy, and it is referred to in the first codicil as a "legacy". If the residuary clause had ended with the words "hereinbefore bequeathed", so that the only direction was to divide residue "between my sisters nephews and nieces to whom legacies have been hereinbefore bequeathed", no question, as it seems to me, could have arisen. Mr. W. C. Wood would have been included in the description by virtue of cll. 5 (c) and 6, and the division would have been in equal shares. It is entirely because the testator has added "in proportion to the legacies bequeathed to them respectively by this my will" that any question arises. And those added words must carry the whole weight of the argument for giving to the word "legacies" a restricted meaning which it does not naturally bear in the first part of the clause. I do not think that those added words can carry that weight. Clauses 5, 6 and 7, read together and in the order in which they occur in the will, convey to one's mind a strong prima facie impression that the testator intends to benefit a class consisting of sisters, nephews and nieces, and to benefit them first by giving them legacies and then by giving them shares of residue - that he has in mind the same sisters, nephews and nieces as taking legacies and as taking shares of residue. And I cannot find anything, either in the will or in extrinsic considerations, to destroy that first clear impression. (at p143)
13. It seems to me to be of little moment that what will pass on death under cll. 5 (c) or 6 may be affected by some act of the testator subsequent to the making of the will. There is never any finality about a will until a testator dies. The testator here might revoke or alter at any time during his life any legacy, pecuniary or specific, and thereby affect the distribution of residue. And I can find nothing in the fact that a specific legacy may be wholly or partially adeemed, or in the fact that its value may vary, to support the exclusion of specific legacies from the purview of the residuary clause. It is true, as has been said, that, if the specific legatee takes a share of residue, his legacies will have to be valued, but again I cannot think that this fact can in this case justify the adoption of the narrower view of the word "legacies" in the residuary clause. The value of a thing has to be ascertained, but this does not mean that it is not an objective fact. It is just as much an objective fact as the state of a man's mind or the state of his digestion. It is quite likely that neither the testator nor his draftsman adverted to the necessity of valuation. If they did, it is quite likely that they thought that sensible people would have no difficulty in agreeing on a value or on a valuer. (at p144)
14. I agree with Else-Mitchell J. that none of the cases cited affords much assistance on the problem in hand, which is one of the construction of a particular will, but there are two or three decisions which should, I think, be briefly noticed. The nearest case to the present that has been cited is Nannock v. Horton [1802] EngR 293; (1802) 7 Ves Jun 391 (32 ER 158) where the word "legacies" in a very similar context was held by Lord Eldon to include specific legacies. The same view was taken - again in a similar context - by Cohen J. (as he then was) in In re Picton; Porter v. Jones (1944) Ch 303 . In Bromley v. Wright [1849] EngR 402; (1849) 7 Hare 334 (68 ER 137) the word "legacies" in a similar context, was held by Sir James Wigram to include annuities. Annuities would, of course, have to be valued for the purpose of distribution. In Dawes v. Executor Trustee and Agency Co. of South Australia Ltd. [1935] HCA 6; (1935) 52 CLR 291 (the headnote to which states the provisions of the will incorrectly) it was held that the word "legacies" in a similar residuary clause did not include a specific legacy of a motor car. Rich and Dixon JJ. said: "Conceding that the specific bequest of the motor-car is a legacy, nevertheless the nature of the residuary clause sufficiently shows that the proportion it adopts refers to legacies expressed in terms of money, and not things which require valuation" (1935) 52 CLR, at p 295 . But the context in that case was very different, and I would, with respect, have taken the same view which the Court in fact took. In In re Feather; Harrison v. Tapsell (1945) Ch 343 Cohen J. held that the word "legacies" in a somewhat similar residuary clause did not include an annuity. But that decision was based mainly on the word "amount", which does not occur in the present case, and the context again was materially different. The only other case which I would mention is In re McConvill; Bicknell v. Union Trustee Co. of Australia Ltd. (1950) VLR 63 . That was not a case of a residuary gift by reference to legacies, and I mention it only because I did in that case construe the word "legacies" in an abatement clause as including only pecuniary legacies. But that was mainly because the pecuniary legacies were given by two clauses which gave nothing but pecuniary legacies, and the other gifts, while perhaps technically "legacies", were of a radically different character. (at p145)
15. For the above reasons I am of opinion that Mr. W. C. Wood takes under the will a share of residue proportionate to the value of the gifts made by cll. 5 (c) and 6. (at p145)
16. There is another question which is raised by Mr. W. C. Wood's appeal. This question arises by reason of a provision in the first codicil which has already been mentioned. Clause 1 of that codicil provides: "In addition to the legacies bequeathed by my said will I give and bequeath to each of them my nephew William Charles Wood and his wife Sylvia Wood five thousand (5,000) ordinary shares in W. T. Wood (Holdings) Limited free from any probate estate or other duty payable in respect of my Estate". (Actually the testator purports to revoke this legacy by cl. 7 of the second codicil, but the only practical effect of that clause is to reduce the amount of Sylvia Wood's legacy.) The question is whether this new legacy is to be treated as a legacy for the purposes of the residuary clause in the will, so as to increase the proportionate share of Mr. W. C. Wood in the testator's residuary estate. (at p145)
17. Prima facie the answer to this question would be in the negative. The residuary clause in the will refers to "legacies hereinbefore bequeathed" and to "legacies bequeathed under this my will", and the additional legacy given by the codicil is not such a legacy. It is necessary, however, to consider whether the position is affected by the concluding words of the codicil. The testator has referred to the codicil as a codicil to his last will bearing date the 9th September 1952 and he concludes with the words: "In all other respects I confirm my said will". (at p145)
18. It is well settled as a general rule that an express confirmation of a will by a codicil effects a republication of the will, with the result that the will and codicil are read as one instrument speaking as at the date of the codicil. One of the most important consequences of this doctrine before the enactment of the Wills Act was in relation to a devise by a testator of his lands. Such a devise would carry only lands owned by the testator at the date of the will. But, if he made a codicil confirming his will, though without referring to the lands, the devise would speak as at the date of the codicil and would carry lands acquired by the testator between the date of the will and the date of the codicil: see Fairweather v. Fairweather [1944] HCA 11; (1944) 69 CLR 121 , per Williams J. (1944) 69 CLR, at pp 146, 147 . But the doctrine was of general application, and has been applied with a great variety of practical consequences. In In re Fraser; Lowther v. Fraser (1904) 1 Ch 726 Stirling L.J. stated the general rule in words which have often been quoted. After referring to the fact that the testator in that case had made several codicils each of which confirmed the will, or the will as altered by prior codicils, he said (1904) 1 Ch, at p 734 : "The effect of this is to bring the will down to the date of the codicil, and effect the same disposition of the testator's estate as if the testator had at that date made a new will, containing the same dispositions as the original will, but with the alterations introduced by the various codicils: see Doe v. Walker [1844] EngR 263; (1844) 12 M & W 591 (152 ER 1334) , In re Champion (1893) 1 Ch 101 ". In In re Reeves; Reeves v. Pawson (1928) Ch 351 Russell J. (as he then was) after quoting this passage said: "Put in another way, the will and the codicil are treated as one document bearing the date of the codicil" (1928) Ch, at p 355 . Simonds J. (as he then was) in In re Tredgold; Midland Bank Executor and Trustee Co. v. Tredgold (1943) Ch 69 said: "A testator, by using such words as 'I confirm my will in other respects', is giving formal expression to his testamentary wishes. The fact that he makes a codicil shows that he is reviewing his testamentary dispositions and, reviewing them, he in effect says: 'This and this I want to alter. This and this I want to stand'. He is there and then stating by reference to an existing and identifiable document his last and final wishes. He is in fact making his last will" (1943) Ch, at p 78 . I do not think that any doubt is cast on the correctness of this statement by later decisions on the very difficult statute which was in question in In re Tredgold; Midland Bank Executor and Trustee Co. v. Tredgold (1943) Ch 69 . Of those decisions In re Sebag-Montefiore; Sebag-Montefiore v. Alliance Assurance Co. Ltd. (1944) Ch 331 and Berkeley v. Berkeley (1946) AC 555 may be mentioned. (at p146)
19. The only real qualification of the rule is, I think, that it must not be used to defeat the apparent intention of the testator. So in Doe d. Biddulph v. Hole [1850] EngR 15; (1850) 15 QB 848 (117 ER 678) Patteson J. said: "It is clear that a codicil confirming a will makes the will for many purposes to bear the date of the codicil; but this rule is subject to the limitation that the intention of the testator be not defeated thereby" (1850) 15 QB, at p 858 (117 ER, at p 682) . Cf. In the Will of Sargood; Trustees Executors and Agency Co. Ltd. v. Sargood (1904) 10 ALR 149 per Hood J. (1904) 10 ALR, at pp 153, 154 and see again the judgment of Williams J. in Fairweather v. Fairweather [1944] HCA 11; (1944) 69 CLR 121 . (at p146)
20. I can see no reason for saying in the present case that it would defeat the intention of the testator to "read the will and codicil as one document bearing the date of the codicil", and to regard the new legacy as one of the legacies by reference to which the proportionate shares of residue are to be ascertained. Mr. W. C. Wood is one of the "sisters nephews and nieces to whom legacies have been hereinbefore bequeathed" within the meaning of the residuary clause in the will, and in the expression "legacies bequeathed under this my will" the words "my will" are to be read as referring to the will as altered by the codicil. (at p147)
21. Of the cases cited, the decision of Cohen J. in In re Picton; Porter v. Jones (1944) Ch 303 which has already been referred to on another point, would, I think, if it were binding on us, practically conclude the matter. It is not binding on us, but it was, in my opinion, correctly decided. It does not appear to be clearly stated in the report that the codicil expressly confirmed the will, but it must have been so: otherwise what the learned judge said (1944) Ch, at pp 307, 308 and his reference to In re Smith; Prada v. Vandroy (1916) 1 Ch 523 and In re Tredgold; Midland Bank Executor and Trustee Co. v. Tredgold (1943) Ch 69 would be pointless. The only other cases that need be mentioned are Hall v. Severne [1839] EngR 444; (1839) 9 Sim 515 (59 ER 456) , Re Courtauld; Courtauld v. Cawston (1882) 47 LT 647 and Re Florence; Lydall v. Haberdashers' Co. (1917) 117 LT 701 . In the first case there were words in the codicil which might perhaps have been held to effect a republication of the will, but they were not referred to by Sir Laurence Shadwell. In the second case there was no confirmation of the will by the codicil, but Kay J. read the will and the codicil as one document. The case of Re Florence; Lydall v. Haberdashers' Co. (1917) 117 LT 701 was, I think, wrongly decided. (at p147)
22. For the above reasons I am of opinion that the legacy given to Mr. W. C. Wood by the first codicil is to be taken into account in calculating the share of the testator's residuary estate to which he is entitled. (at p147)
23. It remains to deal with the appeal of Mrs. Mary Jane Bowers Hawkins, but this, though I think it raises a difficult question, can be disposed of shortly. (at p147)
24. Mrs. Hawkins is a sister of the testator, and she was given by cl. 5 (a) of the will a legacy of 2,000 pounds. She therefore came, even if the word "legacies" were regarded as limited to pecuniary legacies, within the description of the persons who were to take under the clause disposing of ultimate residue. Her position, however, was altered by the testator's third codicil. That instrument contained this provision: "Whereas by my said Will I have bequeathed to my sister Mary Jane Bowers Hawkins the sum of Two thousand pounds free from Probate Estate or other Duty Now I Hereby Revoke the said bequest and in lieu thereof I Direct my executors and trustees to set aside and invest the sum of Four thousand pounds (4,000 pounds) free from any Probate estate or other duty and to pay the net income arising therefrom to my said sister Mary Jane Bowers Hawkins during her lifetime And upon her death to hold such investments as part of my residuary estate". The testator then declared that in all other respects he confirmed his will as amended by the two prior codicils. (at p148)
25. Else-Mitchell J. has held that the effect of the third codicil is to deprive Mrs. Hawkins of the interest in residue which she had by virtue of her legacy under the will. But again I find myself unable to agree with his Honour, although I appreciate fully the practical considerations which led him to his conclusion. I think that the principle which I have discussed above compels us to read the will and the third codicil as one document, and, if the original legacy to Mrs. Hawkins had been simply revoked, I should have thought, despite the decision of Younger J. in Re Florence; Lydall v. Haberdashers' Co. (1917) 117 LT 701 that the elimination of that legacy would have deprived her of any interest in residue. She would have simply ceased to be a sister to whom a legacy was "hereinbefore bequeathed". But her legacy was not simply revoked. She was given "in lieu thereof" a life interest in a sum of 4,000 pounds, which the testator directed to be set aside, and the gift of that interest must be read into the will in place of the gift of 2,000 pounds. And I can see no real reason why the new gift should not be then regarded as a "legacy" within the meaning of the provision which effects the ultimate gift of residue. If she had been given a simple annuity, I should not have felt the slightest doubt about the matter: cf. Bromley v. Wright (1849) [1849] EngR 402; 7 Hare 334 (68 ER 137) . The gift actually made may be more difficult to value than an annuity, but it is what is commonly called a "settled legacy", and it is not, of course, impossible to value it. When the gift of it is inserted in cl. 5 (a) "in lieu of" the original pecuniary legacy, it is correct, in my opinion, to regard it, along with all the other gifts made by cll. 5 and 6, as a "legacy" for the purposes of the disposition of residue. (at p148)
26. There is a general consideration which fortifies me in the conclusion which I have reached. I feel no doubt that the difficulty has been created entirely by the failure of the testator and his draftsman to advert at all to the possible effect of the third codicil on the destination of residue under the will. I think, therefore, that some very compelling consideration should be found before we attribute to the third codicil the effect of excluding Mrs. Hawkins from the description of persons who are to share in residue under the will. (at p149)
27. For the above reasons I am of opinion that Mrs. Hawkins' appeal also should be allowed. (at p149)
KITTO J. I agree that Else-Mitchell J. was right in deciding that cl. 5 (c) of the will did not include ordinary household furniture, and I turn to the other questions in the appeals. (at p149)
2. The first of these questions depends upon the meaning to be ascribed to the word "legacies" in the ultimate residuary gift. The gift takes the form of a trust "to divide the balance between my sisters nephews and nieces to whom legacies have been hereinbefore bequeathed in proportion to the legacies bequeathed to them respectively under this my Will". The question is whether "legacies" in this context refers to pecuniary legacies only, or includes also the personal effects etc., and the shares which are given to William Charles Wood by cl. 5 (c) and cl. 6 respectively of the will. In its prima facie meaning, and in the meaning which it has in the other portions of the will to which my brother Fullagar has referred, the word comprehends specific legacies no less than general pecuniary legacies; but the decision of Else-Mitchell J. was that in the relevant passage it has the narrower meaning. The learned judge found in the context several reasons for reading "legacies" in that passage as confined to pecuniary legacies. (at p149)
3. His Honour referred first to the fact that in a clause appointing William Charles Wood and others as executors and trustees of the will there is a direction that if the testator should die before William Charles Wood should leave England for Australia a sum not exceeding 1,000 pounds should as soon as possible be made available to him to cover his expenses in coming to Australia. Else-Mitchell J. considered that the payment thus provided for was a legacy, but a legacy of so special a nature that it could hardly have been intended to be taken into account in the distribution of residue; and the conclusion seemed to his Honour to follow that some restriction on the ambit of the word "legacies" in the residuary gift was required. With respect, I think the answer is that the 1,000 pounds, even if in the event it had become payable, would not have been a legacy. It would have formed no part of the testator's bounty. Rather than a gift to William Charles Wood for his own benefit, it would have constituted a sum laid out for the benefit of the estate, to cover the cost of making William Charles Wood available to act as executor and trustee. (at p150)
4. But Else-Mitchell J. had other and more important reasons for his conclusion. He considered that the fluctuating character of the gift of personal effects in cl. 5 (c) - and he might have added the fluctuating character of the gift of shares by cl. 6 - made it unlikely that the testator intended the division of residue to be affected by the value at the time of his death of such personal effects - or (one may add) of such shares in the named company - as he might happen to have at that time. And what weighed most with his Honour was the reflection that a direction for a proportionate division of a fund postulates an existing arithmetical relation with which the division shall correspond, and that, strictly speaking, there is no such relation between sums of money on the one hand and chattels or shares on the other. While recognizing that this would not be a conclusive consideration if the context showed positively an intention to include specific legacies in the calculation of proportions - an intention which would necessitate valuations of the chattels and shares as at the death - his Honour found no indication of such an intention in the will. (at p150)
5. For my part, I do not find the considerations which influenced the learned judge sufficiently cogent to satisfy me that when the testator used the word "legacies" in the residuary gift he was departing not only from the normal sense of the word, but from the sense in which he had himself used it a little earlier in the same document. In particular, I do not find anything to lay hold upon in the nature of a division of residue in proportion to legacies. It is going too far, I think, to regard the notion of a proportion between legacies as prima facie applicable only to legacies of fixed sums of money: it applies just as readily to other legacies, though with a necessary implication that a valuation is to be made. My brother Fullagar has discussed the context fully, and I need not repeat his observations upon it. In short I see no sufficient reason for denying, and much reason for affirming, that "legacies" in the residuary gift is used with its fullest meaning, and that accordingly it includes the specific legacies bequeathed to William Charles Wood. (at p150)
6. The case of Dawes v. Executor Trustee and Agency Co. of South Australia Ltd. [1935] HCA 6; (1935) 52 CLR 291 may be thought to tend in the opposite direction. This Court there held that in a gift of residue to such of seven named persons as should be living at the expiration of a specified period "in the same proportions as the legacies herein bequeathed to them bear to one another absolutely", the word "legacies" did not include a motor car specifically bequeathed by the will to one of the seven persons. Rich and Dixon JJ. considered that "the nature of the residuary clause sufficiently shows that the proportion it adopts refers to legacies expressed in terms of money, and not things which require valuation" (1935) 52 CLR, at p 295 . Starke J. expressed himself almost identically. It would be a mistake, however, to regard the case as deciding that in a direction for the division of a residue amongst legatees in proportion to their legacies specific legacies are excluded unless the contrary appears. The decision depended entirely upon the language of the particular residuary clause. Two points should be noticed. First, the word "legacies" was not used anywhere else in the will as including specific legacies. Secondly, the direction for proportionate division was so expressed as to indicate that the proportions intended by the testator for the division of residue were proportions ascertained and fixed as at the execution of the will. The expression "in the same proportions as the legacies . . . bear to one another" carried a strong suggestion that the testator was referring to legacies which bore a present and constant relation to one another, so that a reference to that relation provided a satisfactory shorthand method of describing the settled proportions which he had decided to apply to the residue. In my opinion the case affords no assistance in the problem before us, except for the express recognition by all the judges of the fact that, as a matter of terminology uncontrolled by context, "legacies" includes the subject-matter of specific bequests. If authority were needed for that, one might refer also to Nannock v. Horton [1802] EngR 293; (1802) 7 Ves Jun 391, at p 403 [1802] EngR 293; (32 ER 158, at p 163) and In re Picton ; Porter v. Jones (1944) Ch 303, at p 309 (correcting Stephen Picton to read Stephen Jenkins : see the report in the Law Times (1944) 171 LT, 27, at p 29 ). (at p151)
7. The remaining questions concern the effect of codicils in relation to William Charles Wood and Mrs. Hawkins. To the former the first codicil gave, "in addition to the legacies bequeathed by" the will, a legacy of 5,000 ordinary shares in a company called W. T. Wood (Holdings) Limited. The second codicil revoked this legacy and "in lieu thereof" it gave William Charles Wood 5,000 ordinary stock units in the same company. On the view I have expressed as to the meaning of "legacies", if this legacy had been given by the will instead of by a codicil, it would have had to be taken into consideration in the ascertainment of the proportions to be observed in the distribution of the ultimate residuary estate. The reason is that it would have been one of "the legacies bequeathed . . . under this my Will". Does the fact that it was given by the second codicil make any difference? A similar though not identical question arises in the case of Mrs. Hawkins. She was given by the will a legacy of 2,000 pounds, but by the third codicil the bequest was revoked and "in lieu thereof" the trustees were directed to set aside and invest a sum of 4,000 pounds, to pay Mrs. Hawkins the income during her lifetime, and upon her death to hold the investments as part of the residuary estate. Is Mrs. Hawkins entitled to share in the proportionate distribution of the ultimate residue? (at p152)
8. Else-Mitchell J. did not deal with the question as to the bequest by the second codicil to William Charles Wood, because he considered it a specific legacy and, for that reason, as not being one of the "legacies" referred to in the residuary gift. (Whether it should not rather be regarded as a general legacy may be doubted : see In re Gray ; Dresser v. Gray (1887) 36 Ch D 205 , In re Borne ; Bailey v. Bailey (1944) Ch 190 , In re O'Connor ; Westminster Bank Ltd. v. O'Connor (1948) Ch 628 and cf. In re Rose ; Midland Bank Executor and Trustee Co. Ltd. v. Rose (1949) Ch 78 but on the construction I have given to the word "legacies" the point is immaterial.) The question concerning Mrs. Hawkins, on the other hand, was fully considered by his Honour, with particular reference to the effect of the republication and express confirmation of the will by the successive codicils. He held that Mrs. Hawkins took no share in the residue. (at p152)
9. I do not think that in order to answer these questions there is any need to make a full exploration of the law as to the republication or the express confirmation of wills by codicils. It is true that in In re Picton, Porter v. Jones (1944) Ch 303 Cohen J. (as he then was), having reached a conclusion by construing the relevant will and codicil without regard to the cases on these subjects, turned to some of those cases and found in them additional support for his decision. Amongst the authorities to which he referred was the case of In re Tredgold ; Midland Bank Executor and Trustee Co. v. Tredgold (1943) Ch 69 and as that case has been relied upon before us also it is desirable to mention that Lord Simonds' judgment must be read with the observations made upon it in the Court of Appeal in In re Sebag-Montefiore ; Sebag-Montefiore v. Alliance Assurance Co. Ltd. (1944) Ch 331 (a case which was being argued on the very day on which Lord Cohen was hearing In re Picton ; Porter v. Jones (1944) Ch 303 and was decided only four days after this Court gave its judgment in Fairweather v. Fairweather [1944] HCA 11; (1944) 69 CLR 121 ) and the further observations to be found in Berkeley v. Berkeley (1946) AC 555 ; see also In re Heath's Will's Trusts ; Hamilton v. Lloyds Bank Ltd. (1949) Ch 170 . For the purposes of this case it is enough, I think, to follow the example of Lord Uthwatt in Berkeley v. Berkeley (1946) AC, at p 586 and say that, whatever view the law may take of the operative effect of a confirmation of a will by a codicil, the confirmation at least means to a testator "Save as hereby altered, I now mean what I then said". (at p153)
10. In the first codicil, as I have mentioned, the gift of 5,000 shares to William Charles Wood (together with a similar gift to his wife) was introduced by the words "In addition to the legacies bequeathed by my said Will". In my opinion the intention is evident from the words, and is put beyond doubt by the confirmation of the will, that the will should take effect as if the new legacies of shares had appeared amongst the legacies bequeathed by the will itself. That necessarily means that for the purposes of the ultimate residuary gift the new legacies are to be treated in the same way as the original legacies. And when the second codicil revoked the gift, made a bequest of 5,000 ordinary stock units "in lieu thereof", and confirmed the will, it seems to me that the testator was saying quite clearly that the legacy of the 5,000 stock units, like the legacy of shares which it replaced, was to be regarded as an addition to the legacies given by the will, and that with that addition he now meant what he then said as to (inter alia) the disposition of the ultimate residue. (at p153)
11. In the case of Mrs. Hawkins it is clear enough, I think, that if the third codicil had merely revoked the legacy of 2,000 pounds and otherwise confirmed the will, the result would have been to make the whole will, and in particular the residuary gift, operate as if no legacy had ever been given to Mrs. Hawkins. Again, if the words "in lieu thereof" had been followed by the gift of another legacy, I think it would have been clear that the testator intended the will to operate as if the substituted legacy had been in the will originally. But what follows those words is a gift of a life interest in a fund the corpus of which is to fall into the residuary estate on Mrs. Hawkins' death. It would be difficult enough in any circumstances to think that a life interest in a fund was intended to be treated as a legacy within the meaning of a direction for distribution of the residuary estate in proportion to legacies. To my mind it is well-nigh impossible to think that that was the intention when the fund itself is directed ultimately to form part of the residuary estate, and so to be divided amongst the legatees proportionately to their legacies. The intention which seems to me to appear is that Mrs. Hawkins, instead of receiving a legacy, should be otherwise provided for, and accordingly that she should be excluded from the persons to participate in the ultimate residue. (at p154)
12. General support for the method of approach which I have adopted is to be found in In re Smith ; Prada v. Vandroy (1916) 1 Ch 523 (affirmed (1916) 2 Ch 368 ) and In re Picton ; Porter v. Jones (1944) Ch 303 . I do not think it is possible to take in this case a view similar to that which Younger J. took of the will which was before him in Re Florence ; Lydall v. Haberdashers' Company (1917) 117 LT 701 . (at p154)
13. In the result, I am of the opinion that the appeal of William Charles Wood should be allowed, and that the appeal of Mrs. Hawkins should be dismissed. I would vary the decretal order of Else-Mitchell J. by omitting the declaration relating to William Charles Wood, and by making declarations (1) that he is entitled to a share in the testator's ultimate residuary estate and (2) that for the purpose of determining the proportions in which that estate should be divided William Charles Wood should be treated as if he had been given a legacy equal in amount to the sum of the respective values as at the death of the testator of the property passing to him under cl. 5 (c) of the will, the shares passing to him under cl. 6 of the will, and 5,000 ordinary shares in W. T. Wood (Holdings) Limited. (at p154)
MENZIES J. By a decree in a suit instituted by an originating summons, Else-Mitchell J. determined a number of questions concerning the construction of the will and codicils of W.T. Wood deceased (1959) SR (NSW) 260 ; 76 WN 255 . The will was made on 9th September 1952 and three codicils on 4th November 1953, 1st February 1957 and 11th April 1957 respectively. The deceased died on 21st April 1957. His Honour decided that neither Mrs. M. J. B. Hawkins, the sister of the deceased, nor W. C. Wood, nephew of the deceased, was entitled to a share in the deceased's residuary estate ; it was also decided that a specific bequest to W. C. Wood of "all my personal effects and articles of personal use or ornament belonging to me not hereinbefore bequeathed to my said wife", did not carry so much of the deceased's household furniture as was not bequeathed by the deceased to his wife. Both Mrs. Hawkins and W. C. Wood have appealed against his Honour's decree and as ordered their appeals have been heard together. (at p155)
2. It is convenient to deal first with the content of the specific devise to W. C. Wood already quoted (cl. 5 (c)). His Honour found in the will and codicils a distinction drawn between "personal effects and articles of personal use or ornament" on the one hand and "articles of household furniture (and) articles of domestic use or ornament" on the other hand, and thus held that the description "personal effects" in cl. 5 (c) of the will did not cover "household furniture". I agree entirely both with his Honour's conclusion and his reasons therefor and think it unnecessary to say anything further. (at p155)
3. The course which the deceased followed in disposing of his residuary estate (cl. 7 of the will) was in effect to direct its division into two equal parts, to give the income from one part to his widow for life, to direct the payment of a number of pecuniary legacies out of the other part and finally to direct his executors "to divide the balance thereof between my sisters nephews and nieces to whom legacies have been hereinbefore bequeathed in proportion to the legacies bequeathed to them respectively under this my will". It is this referential method of disposing of the balance of the residuary estate that has given rise to substantial difficulties. (at p155)
4. By cl. 5 of his will, the deceased bequeathed legacies to two sisters, 2,000 pounds to Mrs. Hawkins and 1,000 pounds to Mrs. Forster; pecuniary legacies ranging from 250 pounds to 500 pounds to fifteen nephews and nieces; the specific legacy to W. C. Wood already referred to, and a legacy of 1,000 pounds to the widow of the deceased's brother. All these legacies were given free from any probate estate or any other duty payable in respect of the estate. In addition to the legacies given by cl. 5, there was the following specific bequest in cl. 6: "I give and bequeath all shares held by me at my death in the Company known as Engineers Representatives Pty. Limited to my nephew William Charles Wood absolutely free from any probate estate or other duty payable in respect of my estate". (at p155)
5. By the third codicil to his will, the deceased revoked the bequest to Mrs. Hawkins and "in lieu thereof" directed his executors and trustees "to set aside and invest the sum of Four thousand pounds (4,000 pounds) free from any Probate estate or other duty And to pay the net income arising therefrom to my said sister Mary Jane Bowers Hawkins during her lifetime And upon her death to hold such investments as part of my residuary estate". In all other respects the deceased confirmed his will as amended by two earlier codicils. (at p155)
6. Of the possibilities to which the original gift and the substituted gift to Mrs. Hawkins gave rise - namely, that Mrs. Hawkins was entitled to share in residue either by virtue of the gift in the codicil or by virtue of the gift in the will notwithstanding its revocation by the codicil, or, that Mrs. Hawkins ceased to be entitled to share in residue because the codicil revoked the legacy given by the will and substituted a gift that fell outside the category of legacies described by the words of cl. 7 already quoted - his Honour chose the latter. Against this decision, Mrs. Hawkins appeals. (at p156)
7. In addition to the gifts made to W. C. Wood by cll. 5 (c) and 6 of the will, the deceased, by his second codicil bequeathed to him 5,000 ordinary stock units in W. T. Wood (Holdings) Ltd. This took the place of a bequest of 5,000 ordinary shares in W. T. Wood (Holdings) Ltd. which had been given by the first codicil in these terms: "In addition to the legacies bequeathed by my said will, I give and bequeath to . . . my nephew William Charles Wood . . . five thousand (5,000) ordinary shares in W. T. Wood (Holdings) Ltd . . ." The first codicil confirmed the will subject to the alterations which that codicil made, and the second codicil confirmed the will and the first codicil subject to the alterations which it made. Both the first and the second codicils contained provisions additional to those to which I have referred. (at p156)
8. His Honour decided that W. C. Wood took no share of the testator's residuary estate and in his appeal against this decision it was argued on his behalf that he was entitled to share in the deceased's residuary estate in respect of: (1) the legacy in cl. 5 (c) of the will, (2) the legacy in cl. 6 of the will, and (3) the legacy in the second codicil to the will. (at p156)
9. For the appellants it was sought to place some reliance on the fact that W. C. Wood was the only one of the testator's nieces and nephews living in Australia and in his will the testator had appointed him executor and provided as follows: "I direct that if I shall die before my nephew the said William Charles Wood shall leave England for Australia then a sum not exceeding One thousand pounds (1,000 pounds) shall as soon as possible be made available to him to cover his expenses in coming to Australia". As events happened, this provision never took effect because W. C. Wood did come to Australia before the testator died. Another circumstance to which it was sought to attach significance was that W. C. Wood was consistently called "my nephew William Charles Wood" whereas the deceased's other nephews and nieces were described as sons or daughters of the deceased's brothers or sisters. For Mrs. Hawkins it was, with comparable optimism, earnestly sought to extract assistance from the fact that of the two sisters who were given legacies by cl. 5 of the will, she lived in Australia and was given 1,000 pounds more than the sister living in England. Basing themselves upon these provisions counsel for the appellants referred to Mrs. Hawkins as the deceased's favourite sister and to W. C. Wood as the deceased's favourite nephew and in this way sought to create a climate congenial to their claims to share in residue. The only use of any of the foregoing circumstances that I find to be of assistance is that which his Honour made of the direction to advance 1,000 pounds to W. C. Wood to help meet his expenses on coming to Australia, namely, that this provision was in strictness a contingent legacy and as it was common ground that if the contingency had happened any advance made would properly have been disregarded in determining whether W. C. Wood was entitled to any and what part of the residuary estate, it follows that the word legacies in the direction for the division of the residuary estate did not cover all legacies. Before us Mr. Holmes argued that the provision for the advance was not an independent gift but was a direction to pay out something to be deducted from moneys otherwise becoming payable to W. C. Wood under the deceased's will, and because there were no moneys payable to W. C. Wood unless he was entitled to his share of the residuary estate, the direction to make the advance constituted a clear indication that W. C. Wood was intended to take a share of the residuary estate. This argument I reject. It is clear that the direction in cl. 2 of the will to make the advance to W. C. Wood as executor is independent of any other provision made for him by the will. (at p157)
10. Before turning to the construction of the gift of the balance of residue made in cl. 7 of the will there are one or two matters of fact that should be stated. It appears that the deceased's shares in Engineers Representatives Pty. Ltd. were valued by the Commissioner of Stamp Duties, as at the date of the death of the deceased, at 2 pounds 2s. 0d. per share and that the Commissioner accepted the valuation of the deceased's shares in W. T. Wood (Holdings) Ltd. at 10s. 11d. per share. At the date of his death the deceased was registered as the holder of 2,456 shares in Engineers Representatives Pty. Ltd., but, of these, 1,000 shares had been sold by the deceased during his life to W. C. Wood. This sale was made on the 15th June 1955 but the transfer had not been registered because the Commissioner of Stamp Duties had requisitioned for evidence of the value of the shares at the date of transfer and this requisition had not been satisfied. It also appeared from the evidence that it was part of the arrangement between the deceased and W. C. Wood relating to these shares that the latter could pay for them out of dividends less any additional income tax payable by him because of the receipt of such dividends. (at p158)
11. The crux of the matter is the meaning of the word "legacies" where it is used in that part of cl. 7 whereby the deceased disposes of the balance of the residue of his estate. It is there used twice and it clearly enough has the same meaning on each occasion. Its use in the phrase "in proportion to the legacies bequeathed" points in my judgment to legacies given in such terms that they can be added together and then each used as a fraction of the total to calculate the portion of the balance of the residue to which each legatee is entitled. This is the view his Honour adopted when he said "the language of the testator did not envisage the calculation based on valuations to be made, but a proportion apparent from the will itself" (1959) SR (NSW), at p 267; 76 WN, at p 260 . It seems to me that to read the provision as requiring valuation of legacies other than pecuniary legacies would necessitate the implication of words such as "value of the" before the word "legacies" where it is used for the second time in the provision under consideration. Such an implication could of course be made but it would seem to me to depart from the deceased's scheme of distribution and the only justification for it would be if the word "legacies" when used for the first time in the provision clearly included specific legacies. The word is, however, to be understood in its context without making an implication that would become necessary only if a particular meaning were, at the outset, to be attached to the word to be construed. That the testator meant by "legacies" amounts of money that could be used for the purpose of making calculations is a construction of the provision that it seems to me is supported by other considerations. It seems in the highest degree unlikely that the testator intended to make the division of his residuary estate dependent upon such facts as that when he died he had four electric shavers and half a dozen fountain pens or that he had sold some of his shares or that transient circumstances at the date of his death raised or lowered the value of his shares. For instance, it is hardly to be supposed that the testator intended his will to operate so that if he sold 1,000 shares in Engineers Representatives Pty. Ltd. to W. C. Wood (as he did on 15th June 1955) he was thereby reducing W. C. Wood's share in the residue of the estate by 20,000 pounds or thereabouts. (at p158)
12. It is said, however, that authority points in a direction different from that which I think the words of the will here indicate. If so, the only consequence is that I must treat the authority as inapplicable but in deference to the argument addressed to us, I think it proper to consider the cases that were cited. (at p159)
13. Nannock v. Horton [1802] EngR 293; (1802) 7 Ves Jun 391 (32 ER 158) is a decision of Eldon L.C. that with a residuary bequest to legatees in proportion to their legacies, specific legacies were included in the calculation of the proportions. Eldon L.C. so decided, however, not because he thought this was really intended by the testator but because a particular exclusion in the will, to paraphrase his language, shut out conjecture. In Ward v. Grey [1859] EngR 656; (1859) 26 Beav 485 (53 ER 986) Romilly M.R. held that a direction that every legatee should "contribute 1 pounds per cent. out of their legacies" to the daughter of Nelson and her children bound specific legatees to contribute. The Master of the Rolls did not feel at liberty to draw fine distinctions, because he felt that the testator had reasoned along the lines "Without him, I, the testator, should have had nothing to leave to anyone, and as you who take benefits under my will, get what you do because he has preserved it, you must not grudge giving up one-hundredth part of these benefits to the object of the dying regard and affection of that man who has preserved all that I give to you" (1859) 26 Beav, at p 493 (53 ER, at p 989) ; accordingly his Lordship was ready to find that the words used were intended to convey that all who benefited (with two exceptions) had to contribute. This decision, reached in very special circumstances, does not seem to me to lay down any principle applicable here where the inclusion of specific legatees would introduce such an element of chance into the distribution of the residue of the deceased's estate that it is most unlikely to have been intended. In Bromley v. Wright [1849] EngR 402; (1849) 7 Hare 334 (68 ER 137) Wigram V.C. considered that under the gift of residue "in proportion to the amount of the respective legacies bequeathed . . . by this my will" specific legatees, including one taking a watch, chain and seal, were entitled to share according to the value of their respective legacies. The Vice-Chancellor said that the word "amount" though in strictness inapplicable to annuities and specific legacies was not of such unbending force as to require the exclusion of annuities and specific legacies. This decision was considered by Cohen J., as he then was, in In re Feather; Harrison v. Tapsell (1945) Ch 343 where residue was to be divided among legatees "in such proportions as the trust estate bears to the amount of the legacy bequeathed to such legatees respectively". Referring to Bromley v. Wright [1849] EngR 402; (1849) 7 Hare 334 (68 ER 137) his Lordship used language applicable here when he said: "The assistance I derive from it in this case is the use the Vice-Chancellor made of the word 'amount'. I find that expression here, and I agree entirely with respect, with what the learned Vice-Chancellor said, that, prima facie, that word refers to a pecuniary legacy and not to an elaborate calculation such as would have to be made if I were to hold that the term 'legatees' included annuitants and legatees or legacies and annuities within the meaning of this clause" (1945) Ch, at p 348 . This survey of authorities reveals nothing but a number of special cases establishing no rule of construction and constituting no reason for departing from the meaning which I would attribute without the aid of authority to the provision under consideration. Else-Mitchell J. put this in language I would like to adopt when he said "I must ascertain the intention of the testator by looking at the whole context of his will and, whilst regard is to be had to decisions which lay down rules of construction, I do not consider it my duty to arrive at the same conclusion as was reached on similar words in some other case, unless I am of opinion that such a conclusion conforms with the testator's intention or the words are so intractable as to be incapable of any other meaning" (1959) SR (NSW), at p 265; 76 WN, at pp 258, 259 . (at p160)
14. Since writing the foregoing Kitto J. has brought to my notice the decision of this Court in Dawes v. Executor Trustee and Agency Co. of South Australia Ltd. [1935] HCA 6; (1935) 52 CLR 291 which is closer in point than any of the cases cited to us. There, as it seems to me, the line of reasoning which was followed is the same as that which I have adopted here. Rich and Dixon JJ. said: "Conceding that the specific bequest of the motor-car is a legacy, nevertheless the nature of the residuary clause sufficiently shows that the proportion it adopts refers to legacies expressed in terms of money, and not things which require valuation" (1935) 52 CLR, at p 295 . Starke J. said: "The gift of the testator's motor-car to Dawes is no doubt a specific legacy, but the terms of the residuary clause sufficiently indicate that the proportion contemplated is in reference to legacies expressed in money, and not to gifts such as a motor-car, which would require a valuation." (1935) 52 CLR, at pp 298, 299 . (at p160)
15. The reasoning which has brought me to the conclusion that specific legatees are not legatees for the purposes of the gift of residue further persuades me that the gift made to Mrs. Hawkins by the third codicil also falls outside the provision in question. It is not an annuity but the net income of a fund which will vary both according to the state of investment of the fund and to outgoings. Assuming that it could be valued, I am satisfied that the deceased never had in mind as the method of determining how his residuary estate should be divided an elaborate calculation of the value of something which is itself uncertain. (at p161)
16. For the foregoing reasons I agree with the cogent judgment of Else-Mitchell J. that W.C. Wood is not entitled to share in residue and Mrs. Hawkins is not entitled to do so by virtue of the gift to her in the third codicil, if that is what is to be taken into account. (at p161)
17. This leaves the question whether Mrs. Hawkins is entitled to share in residue by virtue of the legacy of 2,000 pounds given to her by the original will notwithstanding its revocation by the third codicil. (at p161)
18. Because each codicil confirmed the will and any earlier codicil or codicils, the will and all the codicils are to be read together as if made at the date of the last codicil. The principle is stated by Lord Russell of Killowen delivering the judgment of the Privy Council in Goonewardene v. Goonewardene (1931) AC 647 at p 650 : "It is well settled in England that, by virtue of s. 34 of the (English) Wills Act" - cf s. 4 of the Wills Probate and Administration Act (N.S.W.) - "the effect of confirming a will by codicil is to bring the will down to the date of the codicil, and to effect the same disposition of the testator's property as would have been effected if the testator had at the date of the codicil made a new will containing the same dispositions as in the original will but with the alterations introduced by the codicil. In the language used by North J. in his judgment in In re Champion (1893) 1 Ch 101, at p 109 the effect is to make a devise in the will 'operate in the same way in which it would have operated if the words of the will had been contained in the codicil of later date'." It seems to me that the application of this principle would, except in special circumstances, require that the revocation by codicil of the legacy given to Mrs. Hawkins by the will should be regarded as destroying the legacy for every purpose of the will and codicil. In In re Picton ; Porter v. Jones (1944) Ch 303 applying Re Courtauld ; Courtauld v. Cawston (1882) 47 LT 647 and In re Smith ; Prada v. Vandroy (1916) 1 Ch 523 and distinguishing Re Florence ; Lydall v. Haberdashers' Co. (1917) 117 LT 701 Cohen J. so held where there was a gift of residue made by reference to legacies affected by codicils, so that legatees whose legacies were revoked by the codicil and who received no substituted legacies were not entitled to participate in any residue. In Re Florence ; Lydall v. Haberdashers' Co. (1917) 117 LT 701 Younger J. decided that where a codicil revoked certain legacies given by a will which also disposed of residue by reference thereto, legatees were nevertheless entitled to share in residue. His Lordship said : "It is, I think, permissible to construe this provision, that the residue is to be divided in the proportions of the respective legacies, as a provision which, from the very beginning, was inserted as a convenient way of showing the actual proportions, ten and one, or whatever they may have been, in which this particular fund was to be divided between these particular institutions ; or again, you may arrive at the same conclusion by holding, as I think you may fairly hold, that 'in the proportions of their respective legacies' means 'in the proportions of their respective legacies as hereinbefore named' - that is, altogether irrespective of whether the legacies were received or not, or were effective or not, because that contingency was not, in this connexion, present to the testator's mind as a matter of any importance" (1917) 117 LT, at p 703 . In the will there under consideration, however, the names of the legatees were set out in the gift of residue itself and not merely in the bequest of legacies, and the codicil, which in all other respects confirmed the will, left the names standing in the residuary gift notwithstanding the revocation of the legacies. Here, there is as there was in Re Courtauld ; Courtauld v. Cawston (1882) 47 LT 647 and In re Picton ; Porter v. Jones (1944) Ch 303 but not in Re Florence ; Lydall v. Haberdashers' Co. (1917) 117 LT 701 the substitution of other gifts for the revoked legacies and with reference to this consideration Cohen J. in In re Picton ; Porter v. Jones (1944) Ch 303 said : "In my judgment, where there is such a substitution it means prima facie a substitution for all the purpose of the will including the right to participate in the division of residue where residue is directed to be divided in proportion to the legacies left to the pecuniary legatees by the will" (1944) Ch, at p 307 . There are to be found cases however where additional legacies given by codicil were disregarded for the purpose of deciding those entitled to share in residue where the bequests refer to gifts of legacies. Hall v. Severne [1839] EngR 444; (1839) 9 Sim 515 (59 ER 456) is such a case ; and so is Nagle v. Corrigan (1948) 48 SR (NSW) 252 ; 65 WN 99 where there being no words of substitution, Sugerman J. held that a gift by codicil of pecuniary legacies in addition to those given by the will which disposed of residue in proportion to legacies, did not affect the distribution of residue. His Honour took the view that the method adopted for disposing of residue was merely a compendious substitution for repeating the names of legatees and setting out the proportions in which they were to share in residue. This decision seems to me to have gone further than did Younger J. in Re Florence ; Lydall v. Haberdashers' Co. (1917) 117 LT 701 and there is no need here to consider its correctness. (at p162)
19. The foregoing review shows a current of authority that in a case where there is a gift of residue by reference to a bequest of legacies and by codicil confirming the will a legacy is revoked and another gift is substituted therefor, it is the substituted gift that must be regarded for the purpose of determining the division of the residue. This is such a case because by the third codicil the legacy bequeathed by the will is revoked and another gift is made "in lieu thereof". In these circumstances I agree with Else-Mitchell J. that Mrs. Hawkins is not entitled to take any share in the residue by virtue of the revoked legacy. (at p163)
20. For the foregoing reasons I consider that both appeals should be dismissed. (at p163)
ORDER
Hawkins v. Perpetual Trustee Co. (Limited) and Others.Appeal allowed. Vary order of Else-Mitchell J. made on 10th February 1959 by deleting so much thereof as declares that upon the true construction of the will and codicils of William Thomas Wood deceased and in the events which have happened the appellant William Charles Wood takes no share in any part of the residuary trust funds of the said testator's estate. In lieu thereof declare that upon the true construction of the said will and codicils and in the events which have happened the persons entitled to share in the ultimate residue of the estate of the said testator are the sister of the said testator Beatrice Eliza Foster Forster and the nephews and nieces of the said testator, including the said William Charles Wood, mentioned in cl. 5 (c) of the said will And that the said sister, nephews and nieces are entitled to share in the said residue in proportion to the amount or value of the legacies bequeathed to them respectively by cll. 5 and 6 of the said will and cl. 7 of the second codicil to the said will And that for the purpose of ascertaining the said proportions the legacies given by cll. 5 (c) and 6 of the said will and the legacy given by cl. 7 of the said second codicil to the said William Charles Wood are to be valued as at the date of the death of the said testator. Remit cause to Supreme Court of New South Wales to enable such values to be determined in default of agreement. Costs of all parties of this appeal, those of Perpetual Trustee Company (Limited) and Jane Ingram Wood as between solicitor and client, to be paid out of the residuary estate of the said testator.
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